High Court To Rule on Religion Law

'93 Measure Protecting Acts of Faith Produces Hundreds of
Lawsuits

The Supreme Court yesterday accepted what promises to be a
momentous case on religious freedom, involving the
constitutionality of a 1993 federal law that makes it far more
difficult for government to infringe on religious practices, even when
they violate local statutes.

The law is among the most far-reaching protections of
religious activity ever passed by Congress and has been put to a
variety of uses since its 1993 enactment -- by churches seeking
exemptions from zoning requirements, by prisoners requesting they be
allowed to wear certain clothes, by landlords wanting to avoid
fair housing requirements if they deny apartments to unmarried couples.

State and local officials say the law has colored their
dealings with religious believers of all faiths and incited
turmoil in prisons from nearby Lorton to the Far West. As evidence
of the legal strife it has created, they note that it already has generated more
than 200 lower court cases nationwide, about half involving prisoners.

Called the Religious Freedom Restoration Act, the law was
enacted to counter a 1990 Supreme Court decision that allowed
certain infringements on religious beliefs and practices.

By agreeing to take the new case, the justices will not only
reenter the enduring battle between church and state, but could
produce a landmark decision on Congress's powers to reverse the effects
of a high court ruling.

While backers of the law say it protects America's diverse
religious interests, opponents claim it infringes on the
authority of states and municipalities and forces them to be
unnecessarily tolerant.

"The [law] is a bold and unprecedented example of federal
social policy engineering that commandeers the states . . . to
accommodate religion more than the Constitution requires,"
Marci A. Hamilton, lawyer for the city of Boerne, Tex., said in a
petition to the court.

The city sought to stop a local Catholic church from enlarging
its 1923 revival mission-style building in a historic district.
The archbishop of San Antonio, P.F. Flores, successfully
challenged the denial, relying on the 1993 law to make his case.

"The church was turning people away from Mass because the
church building was too small," Douglas Laycock, lawyer for
the archbishop, said yesterday.

The city's refusal to allow the expansion, he said,
"infringed on people's right to practice their religion."

When Congress passed the law it was responding to a 1990
ruling that an individual's religious beliefs do not excuse him
from complying with otherwise valid laws, so long as those laws
are being applied to all citizens in a neutral and general way.

That case involved two Native Americans who were fired at a
private Oregon rehabilitation center after they ingested peyote,
a cactus that contains the hallucinogen mescaline, during a
religious ceremony. The state denied the men unemployment
benefits based on the fact they engaged in illegal drug use. The two men,
asserting their religious rights had been violated, won in lower
state courts, but the Supreme Court ruled against them.

Writing for the five-justice majority, Justice Antonin Scalia
refused to use a test from earlier cases that required a state to
prove it had a "compelling interest" in enforcing a
statute that infringed on religious practices.

That test put more of the burden on governments to defend
regulations that interfere with religious beliefs.

In the weeks and months following the decision, a diverse
coalition of religious and civil liberties groups lobbied
Congress to reverse effects of the ruling, saying it would particularly
hurt smaller religions whose interests might not be understood by legislatures.

"When a law begins to infringe on a church, no matter how
incidentally, that is not consistent with religious
liberty," said Laycock, a University of Texas law professor involved
in pressing Congress to overturn the ruling in Employment Division
v. Smith.

In 1993, Congress overwhelmingly approved and President
Clinton signed the Religious Freedom Restoration Act.

The central provision of the law attempts to write into
statute what the court refused to find in the Constitution.

It says government may interfere with religious practices only
if it can demonstrate the regulation or action in question
furthers a "compelling governmental interest" and is
the least restrictive means of furthering that interest.

In the case of City of Boerne v. Flores now before the
justices, the U.S. Court of Appeals for the 5th Circuit rejected
claims Congress had overstepped its authority when it passed the
law.

The appeals court said Congress correctly relied on Section 5
of the Fourteenth Amendment, which says Congress "shall have
power to enforce, by appropriate legislation, the
provisions" of the amendment protecting against state
infringement on individual rights.

The appeals court also rejected the city of Boerne's arguments
Congress had breached state sovereignty and crossed the line
separating church and state.

In Boerne's appeal, supported by 16 states, the city stressed
there are limits to Congress's exercise of so-called Section 5
powers and it is the court, not federal lawmakers, who are
arbiters of the breadth of constitutional protections.

Locally, the statute has spurred numerous lawsuits. In June, a
federal district judge in Maryland ruled the law is
unconstitutional in connection with the Archdiocese of Baltimore's
efforts to demolish an abandoned monastery in Cumberland that
city officials wanted to preserve. The case is on appeal to the 4th
Circuit.

In another case, a federal judge in the District relied on the
law to overrule the D.C. Zoning Board after the board refused to
allow a Foggy Bottom church to run a soup kitchen that neighbors
had protested.

Prisoners also have used the law to claim they need special
accommodations to fulfill religious traditions. Fears of such
litigation allegedly led guards at the District's Lorton
Correctional Complex to allow visitors posing as religious missionaries
to meet unsupervised with prisoners. It was later revealed the visitors
were smuggling drugs into the prison.

Oliver Thomas, special counsel to the National Council of
Churches and one of the leaders who pressed Congress to pass the
law, said yesterday the Texas dispute was a good one for the high court
to take up.

"It's not one of those cases involving some Satan
worshiper in a federal prison," he said. "This is a small
congregation that has so many people they can't fit in the sanctuary.
It's about as pristine a case as you could come up with."

The case is likely to be argued in January and decided by
July.

Separately yesterday, the justices without comment rejected an
appeal by pathologist Jack Kevorkian of a lower court ruling that
bars him from helping terminally ill patients commit suicide.

Earlier this month the court announced it would use two other
cases to decide whether mentally competent, terminally ill
patients may seek help from their doctors in hastening death.

The court yesterday also agreed to rule on whether states may
tax the income of hospitals run by employee welfare benefit plans
and whether a Florida state Senate district was unlawfully drawn along
racial lines to favor blacks.